Defendant
seeks relief pursuant to 28 U.S.C. § 2255, arguing that
in light of the Supreme Court's holding in Johnson v.
United States, 576 U.S. ___, 135 S.Ct. 2551 (2015) and
Welch v. United States, 578 U.S. ___, 136 S.Ct. 1257
(2016), Defendant is no longer a career offender and should
be resentenced. ECF No. 4061. On July 8, 2016, the Government
moved to stay consideration of the § 2255 motion pending
the decision by the United States Supreme Court in
Beckles v. United States, No. 15-8544 (2016). ECF
No. 4067. The court granted the motion to stay on August 9,
2017. ECF No. 4075. After Beckles was decided, the
Government filed a response in opposition to Defendant's
§ 2255 motion and a motion for summary judgment. ECF
Nos. 4108, 4109. Defendant filed a response in opposition to
the Government's motion for summary judgment on April 27,
2017. ECF No. 4119.

I.
Background

On
January 21, 2003, Defendant was charged in a third
superseding indictment with conspiracy to possess with intent
to distribute cocaine, in violation of 21 U.S.C. §§
841 (a)(1) and § 846; and possession with intent to
distribute cocaine, in violation of § 841(a)(1). ECF No.
871. Defendant entered into a written plea agreement on
January 30, 2003 (as amended on February 4, 2003) agreeing to
plead guilty to count four of the third superseding
indictment (possession with intent to distribute). ECF No.
973. Defendant entered the guilty plea in this court on
February 4, 2003. ECF No. 982.

A
Pre-Sentence Report (PSR) concluded Defendant was a career
offender pursuant to U.S.S.G. §4B1.1(b). The PSR found
Defendant's prior convictions for Robbery/Strong Arm
Robbery on the same day in 1986, Distribution of Cocaine in
1991, and Assault and Battery of a High and Aggravated Nature
(“ABHAN”) were predicate convictions for career
offender purposes. See ECF No. 3876-1, PSR
¶¶ 70, 72, 76. Defendant's guideline range was
calculated to be 262-327 months. Id. at ¶ 105.
There were no objections to the PSR. ECF No. 1890.

On June
16, 2004, Defendant appeared for sentencing. The court
granted the Government's motion for downward departure
and sentenced Defendant to 210 months' imprisonment and
an eight-year term of supervised release. Defendant did not
appeal his conviction or sentence. Defendant filed the
instant § 2255 motion on June 23, 2016. ECF No. 4061.

II.
Johnson and Beckles

On June
26, 2015, the Supreme Court held that the residual clause of
the Armed Career Criminal Act (“ACCA”) violates
due process as it “denies fair notice to defendants and
invites arbitrary enforcement by judges.” 576 U.S. at
___, 135 S.Ct. 2551 (2015). By holding the ACCA residual
clause unconstitutionally vague, the Court narrowed the
predicate offenses that could serve to enhance a sentence to
those that qualify under the enumerated or force clauses. The
ACCA residual clause can no longer support a defendant's
classification as an armed career criminal. On April 18,
2016, the Supreme Court decided Welch v. United
States, 578 U.S. ___, 136 S.Ct. 1257 (2016), holding
that the newly established right recognized in Johnson is
retroactive to cases on collateral review.

On
March 6, 2017, the Supreme Court issued an opinion in
Beckles, holding “the advisory Guidelines are
not subject to vagueness challenges under the Due Process
clause.” Beckles, 580 U.S. ___, 137 S.Ct. 886,
890 (2017). Therefore, the residual clause in
§4B1.2(a)(2) of the former sentencing
guidelines[1] is not void for vagueness. Id. at
892.

Defendant
was sentenced in 2004, when the guidelines were mandatory. He
was not resentenced after United States v. Booker,543 U.S. 220 (2005), which held District Courts have
discretion to impose a sentence outside the guideline range
based on a review of a wider range of sentencing factors,
making the sentencing guidelines advisory, not mandatory.

III.
Discussion

Defendant
argues his Johnson claim is not precluded by Beckles
because his sentence was imposed pursuant to a mandatory
guideline range. As noted by Justice Sotomayor,
Beckles “leaves open the question whether
defendants sentences to terms of imprisonment before . . .
Booker . . . may mount vagueness challenges on their
sentences.” 137 S.Ct. at 903 n.4. However, even
assuming arguendo the former residual clause of the
career offender guideline would be found void for vagueness
in a mandatory guideline setting, Defendant has at least two
predicate convictions that qualify him for the career
offender enhancement: Strong Arm Robbery/Armed Robbery and
Distribution of Cocaine.[2] Defendant's drug offense was
untouched by the Johnson ruling and any application
of that reasoning to the career offender guideline. In
addition, the Fourth Circuit has now held that South Carolina
robbery is a violent felony under the ACCA. United States
v. Doctor,842 F.3d 306 (4th Cir. 2016).

While
Defendant's sentence was enhanced pursuant to the career
offender guideline, not the ACCA, the Fourth Circuit has
treated predicate offenses similarly for both. United
States v. Carthorne,726 F.3d 503, 511 (4th Cir. 2013)
(“We rely on precedents addressing whether an offense
is a crime of violence under the Guidelines interchangeably
with precedents evaluating whether an offense constitutes a
‘violent felony' under the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e)(2)(B), as the two terms
are defined in a substantively identical manner.”)
(citations omitted). Therefore, Strong Arm Robbery remains a
predicate offense for career offender purposes under §
4B1.2(a)(1). Accordingly, Defendant has (at least) two
qualifying predicate convictions for the career offender
enhancement, and is not entitled to relief.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;IV.
...

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